Billings v. Carver

54 Barb. 40, 1868 N.Y. App. Div. LEXIS 176

• Court: New York Supreme Court
• Decided: November 2, 1868
• Status: Published

Opinion

By the Court,

Cardozo, J.

On the papers ‘before us it must be assumed that the service of the order for the defendant to appear and submit to examination as to his property, was made without exhibiting to him the original order of the judge.

If any other papers than the interrogatories and answers were before the justice at special term when the order adjudging the defendant to be in contempt was made, they were not presented to us on this appeal. If there were any such papers, and they would have shown that the point of whether the original order was exhibted or not was the subject of contradictory evidence, the respondent should not have permitted the argument to proceed before us upon defective appeal papers.

But I do not regard the question of whether the evidence was conflicting upon that point as very important. For if it be assumed that it was not so, and that the evidence all showed that the order was not exhibited, still the service would have only been irregular; not one which the defendant was authorized to disregard, but which he could have objected to and had set aside had he appeared and taken that objection. His failure to take the objection was a waiver of it. Of course, if the appeal papers showed that the question of the manner of the service of the original order was the subject of conflicting testimony, we would not disturb the conclusion which the judge reached as to who told the truth. In any view, therefore, it cannot be said that there was any error of law committed by the judge below.

It appears, however, that the defendant disregarded the order, upon the advice of his counsel that he might lawfully do so. This is -distinctly sworn to by the defendant, and is uncontradicted, and there is nothing in the appeal papers before us to lead to a doubt either that such advice was given in good faith, but from an erroneous judgment of the law, or that it was in good faith relied upon by the defendant. While there is no rule or practice which absolutely protects a patty from punishment for a violation of an order committed upon the advice of counsel, yet I think substantial justice, and the wise exercise of the discretion vested in us, require us to relieve the defendant when the effect of his counsel’s mistake may be to keep him in jail indefinitely by reason of his inability to pay a large sum of money.

[New York General Term, November 2, 1868.

For this reason, I am for modifying the order so that it shall direct that the defendant be adjudged guilty of the contempt charged, and be fined as therein prescribed, unless he appears and submits to examination under the original order upon a day to be designated in the order to be entered on this appeal, and. upon his making an affidavit that he has made no transfer of his property since the order for his examination, except and unless under the provisions of the bankrupt act.

Geo. G. Barnard, Cardozo and Ingraham, Justices.]